from the blowback dept

Well, well. For the past few months I've been meaning to write about Disney's silly lawsuit against Redbox, but other stuff kept coming up, and now a judge has ruled against Disney and said that Disney appears to be engaged in copyright misuse. This is in a case that Disney brought -- and it appears to be backfiring badly. Redbox, as you probably know, has kiosks where you can rent DVDs relatively cheaply. It's managed to stay alive despite the traditional DVD rental business disappearing most everywhere else. About a decade ago, Hollywood fought vigorously against Redbox, but the company survived (though being taken over by a private equity firm in 2016), relying heavily on first sale rights, enabling it to legally purchase DVDs and then rent them out.

Back in December, however, Disney sued Redbox over taking its business to the next level and including download codes that could be purchased at a Redbox kiosk. Though it took them basically forever, Hollywood studios have finally realized that offering online access with the purchase of movies is a good idea, but they only want the end consumer who is buying a DVD to get access to them. So, Redbox would buy the Disney "Combo Packs" that offered the DVD and a download code, and the would offer the paper codes in kiosks to let renters watch the movie online. They weren't just copying the code and letting anyone use it -- it was still a one-to-one limitation with the purchase in that they would buy the DVD with a paper code on it, and then stuff that paper code into their kiosk delivery pods. Disney argued that this was contributory copyright infringement, even though the code pointed to a legitimate/authorized version of the movie and was legitimately purchased.

Redbox hit back by arguing that the First Sale doctrine protected it (as it did with the physical rentals) and that it is free to use the codes in this manner as the legal purchaser. Disney's response to that was that First Sale does not apply to the download code because it's not the copyright-covered work.

But Redbox also hit back with a separate punch against Disney, arguing that it was engaged in copyright misuse, a concept we've discussed in the past, but that rarely shows up in cases these days (even though we've argued it should be used more often). The basic argument was that Disney was over-claiming what copyright allowed it to exclude in order to stamp out competition. And, (somewhat surprisingly), in the process of denying Disney's demand for a preliminary injunction, the court agrees that Disney is engaged in copyright misuse because it is using its copyright in the movies to restrict what happens to purchases.

Combo Pack purchasers cannot access digital
movie content, for which they have already paid, without exceeding
the scope of the license agreement unless they forego their
statutorily-guaranteed right to distribute their physical copies of
that same movie as they see fit. This improper leveraging of
Disney’s copyright in the digital content to restrict secondary
transfers of physical copies directly implicates and conflicts with
public policy enshrined in the Copyright Act, and constitutes
copyright misuse.

Because of this, the court finds that Disney has little chance of prevailing on its contributory copyright infringement claims and denies the injunction request.

The court then notes that it doesn't even need to get into the First Sale issues, but then suggests Redbox would have difficulty winning on a pure first sale argument, mainly because of the ReDigi decision that said you can't sell "used" MP3s. And then concludes that First Sale doesn't really come into play since it's the code that's at issue, rather than the copyright-covered content:

Notwithstanding ReDigi, the plain language of the statutes,
and the important policy considerations described by the Copyright
Office, Redbox urges this court to conclude that Disney’s sale of
a download code is indistinguishable from the sale of a tangible,
physical, particular copy of a copyrighted work that has simply
not yet been delivered. Even assuming that the transfer is a sale
and not a license, and putting aside what Disney’s representations
on the box may suggest about whether or not a “copy” is being
transferred, this court cannot agree that a “particular material
object” can be said to exist, let alone be transferred, prior to
the time that a download code is redeemed and the copyrighted work
is fixed onto the downloader’s physical hard drive. Instead,
Disney appears to have sold something akin to an option to create
a physical copy at some point in the future. Because no
particular, fixed copy of a copyrighted work yet existed at the
time Redbox purchased, or sold, a digital download code, the first
sale doctrine is inapplicable to this case.

There's a separate issue around whether or not Redbox's actions constituted a "breach of contract," and again the court is unimpressed. The key question is whether or not the text that Disney prints on its box about how "codes are not for sale or transfer" represents a contract. The court easily concludes that it does not:

The phrase “Codes are not for sale or transfer” cannot
constitute a shrink wrap contract because, like the box at issue in
Norcia, Disney’s Combo Pack box makes no suggestion that opening
the box constitutes acceptance of any further license restrictions.... Although Disney seeks to
analogize its Combo Pack packaging and language to the packaging
and terms in Lexmark, the comparison is inapt. The thorough boxtop
license language in Lexmark not only provided consumers with
specific notice of the existence of a license and explicitly stated that opening the package would constitute acceptance, but also set
forth the full terms of the agreement, including the nature of the
consideration provided, and described a post-purchase mechanism for
rejecting the license. Here, in contrast, Disney relies solely
upon the phrase “Codes are not for sale or transfer” to carry all
of that weight. Unlike the box-top language in Lexmark, Disney’s
phrase does not identify the existence of a license offer in the
first instance, let alone identify the nature of any consideration,
specify any means of acceptance, or indicate that the consumer’s
decision to open the box will constitute assent. In the absence of
any such indications that an offer was being made, Redbox’s silence
cannot reasonably be interpreted as assent to a restrictive
license.

Of course, this almost certainly means that Disney is quickly reprinting the packaging on all its Combo Pack DVDs to make this language more legalistic to match the Lexmark standard.

Still, the court also notes that Disney makes other claims on the box that are clearly not true, which further undermine the claim that random sentences on the box represent a contract:

Indeed, the presence of other, similarly assertive but
unquestionably non-binding language on the Combo Pack boxes casts
further doubt upon the argument that the phrase “Not For Sale or
Transfer” communicates the terms or existence of a valid offer.
The packaging also states, for example, that “This product . . .
cannot be resold or rented individually.”... This prescription is demonstrably false, at least insofar as
it pertains to the Blu-ray disc and DVD portions of the Combo
Pack.8 The Copyright Act explicitly provides that the owner of a
particular copy “is entitled, without the authority of the
copyright owner, to sell or otherwise dispose of the possession of
that copy.” ... Thus, the clearly unenforceable “cannot be resold
individually” language conveys nothing so much as Disney’s
preference about consumers’ future behavior, rather than the
existence of a binding agreement. At this stage, it appears that
the accompanying “Not For Sale or Transfer” language plays a
similar role.

While it's a bit disappointing to see the court buy into the ReDigi reasoning on First Sale, it's good to see it not buy the language on the box representing a contract and to call out the company for copyright misuse in leveraging copyrights to stifle other lawful activity. This case is likely far from over, though, so we'll see how things progress.

from the more-of-the-same dept

We've noted repeatedly how ESPN has personified the cable and broadcast industry's tone deafness to cord cutting and TV market evolution. The company not only spent years downplaying the trend as something only poor people do, it sued companies that attempted to offer consumers greater flexibility in how video content was consumed. ESPN execs clearly believed cord cutting was little more than a fad that would simply stop once Millennials started procreating, and ignored surveys showing how 56% of consumers would ditch ESPN in a heartbeat if it meant saving the $8 per month subscribers pay for the channel.

Fast forward to this week, when Disney CEO Bob Iger suggested that Disney and ESPN had finally seen the error of their ways, and would be launching a $5 per month streaming service sometime this year. Apparently, Iger and other ESPN/Disney brass have finally realized that paying some of the least-liked companies in America $130 per month for endless channels of crap has somehow lost its luster in the streaming video era:

"There are signs that young people are coming into multi-channel television. People that were once called or thought to be cord-nevers are starting to adopt less expensive over-the-top packages," Iger said.

Who knew? Did you know? I certainly didn't know. Bloomberg, meanwhile, informs us that the company's new service is "Iger's bet on the future":

"If anything it points to what the future of ESPN looks like,” Iger said on a conference with investors. “It will be this app and the experience that it provides."

But will it? There's every indication that ESPN's still only paying lip service to innovation. What consumers say they want is the ability to either avoid ESPN entirely, or buy ESPN the channel on a standalone basis. But it's important to point out that's not what ESPN is actually offering here. The new streaming service won't provide access to ESPN's existing channel lineup unless you have a traditional cable subscription. Without a traditional cable TV subscription, users of the app will be directed to other content they may or may not actually want:

"The over-the-top service will roll out sometime in the spring, in tandem with a redesign of Disney's ESPN app. The over-the-top feature will be one part of that app, allowing users to watch live programming that will not otherwise be available on any of its channels. "The third feature is a plus service, we're calling it ESPN Plus, that will include an array of live
programming that is not available — live sports, live sports events — not available on current channels," Iger said in an exclusive interview on CNBC's "Closing Bell."

This is something ESPN already tried once with the launch of ESPN 360 (ultimately renamed just ESPN 3) years ago. That channel offered access to streaming sports content, but not any of the content anybody was actually interested in (unless you're really crazy for men's professional hopscotch). What users want is either the option to buy ESPN as a standalone channel, or to avoid ESPN entirely. What ESPN's offering is a streaming channel retread filled with content viewers probably didn't ask for. All, again, because ESPN is afraid of cannibalizing its traditional viewership numbers by trying something new.

Admittedly ESPN is stuck between a rock and a hard place with no real easy options. ESPN currently makes $7.21 for each cable TV subscriber, many of whom pay for ESPN begrudgingly. Many industry insiders also have told me over the years that ESPN's contracts with many cable providers state that should ESPN offer its own streaming services, cable providers will no longer be bound by restrictions forcing them to include ESPN in their core lineups, which will only accelerate the number of skinny bundle options being offered without ESPN.

In short, if ESPN offers a standalone version of ESPN, it only encourages customers to cut the cord and move to less expensive (and less profitable) alternatives. If ESPN doesn't give customers what they want, they'll cut the cord out of frustration. But if ESPN actually wants to be ready for the future, getting out ahead of the inevitable shift to streaming is the only real solution. Nobody said evolution would be painless or the traditional cable TV cash cow would live forever. ESPN has the option of getting out ahead of the trend, or playing from behind later on when the cord cutting trend shifts from a trickle to a torrent.

from the missing-the-whole-point dept

For years now Netflix and HBO CEOs have stated that they see streaming service password sharing as little more than glorified advertising. These execs have long argued that once users realize they enjoy the product, they'll usually sign up for their own account (something particularly true of kids once they leave home and get a job). Even then, these companies already impose a limit on the number of simultaneous streams their services offer, and already charge more for a greater number of streams -- so it's not like these companies are giving away the farm for free anyway.

But for the last several years incumbent broadcast and cable executives have been engaging in breathless hysteria regarding such password sharing. Charter CEO Tom Rutledge has grown increasingly agitated over the practice, arguing that HBO and Netflix's tolerance of password sharing shows a "complete lack of control and understanding in the space," while going so far as to argue that a "lack of control over the content by content companies and authentication processes has reduced the demand for video because you don’t have to pay for it."

Of course you may have noticed that the "demand for video" is higher than ever before, based on Netflix's now 50 million monthly streaming subscribers and the massive rise in all manner of viewing options. And Netflix CEO Reed Hastings (who understands his own business pretty well at this point) has gone so far as to state he "loves" the practice:

"We love people sharing Netflix," CEO Reed Hastings said Wednesday at the Consumer Electronics Show here in Las Vegas. "That's a positive thing, not a negative thing."...A lot of the time, he said, household sharing leads to new customers because kids subscribe on their own as they start to earn income.

Yet some cable and broadcast executives continue their bizarre assault on a problem that isn't. At recent industry events both Rutledge and Disney exec Justin Connolly lamented what they call a rise in password sharing "piracy," hinting that they intend to crack down on the practice in the near future:

"Tom Rutledge has had enough. The chief executive officer of Charter Communications Inc., which sells cable TV under the Spectrum name, is leading an industrywide effort to crack down on password sharing. It’s a growing problem that could cost pay-TV companies millions of subscribers—and billions of dollars in revenue—when they can least afford it.

“There’s lots of extra streams, there’s lots of extra passwords, there’s lots of people who could get free service,” Rutledge said at an industry conference this month...“It’s piracy,” Connolly said. “It’s people consuming something they haven’t paid for. The more the practice is viewed with a shrug, the more it creates a dynamic where people believe it’s acceptable. And it’s not."

You'd think Rutledge, the highest paid executive in America last year, would have a slightly better grasp on the industry he works in and where it's headed. Again, Netflix and HBO impose simultaneous stream limits, so it's not like they're giving away the store. And again, these executives have clearly stated they see password sharing as advertising, so calling it piracy makes no coherent sense. It's a reflection of the hubris often seen in the traditional cable TV sector, where they believe every natural market evolution is an existential threat.

In other words, these two execs have plenty of other problems they need to deal with before focusing all of their ire on a problem that isn't. And when looking for advice on the evolving video market, maybe you should steer clear of folks that pretty clearly have little to no understanding of adaptation or where the market is headed.

from the charm-offensive dept

Once again, Disney has decided to sacrifice goodwill for brand perception. Not content to limit itself to sending C&Ds to kids' birthday party performers, Disney's latest act of self-savagery has resulted in backlash from several top journalistic entities.

Back in September, the LA Times dug into Disney's supremely cosy relationship with Anaheim's government -- one that has produced years of subsidies, incentives, and tax shelters for the entertainment giant. Disney wasn't happy with the report, so it responded the way any rational company would: it issued a statement stating the articles were full of errors and claimed the LA Times "showed a complete disregard for basic journalistic standards." (Despite these claims, Disney has yet to ask for corrections to the LA Times' investigative articles.)

The Los Angeles Times had made Disney’s blackout public in a note to readers last week that explained why no feature articles about Disney movies appeared in its 2017 holiday movie preview section. Disney also did not give The Times early access to “Thor: Ragnarok” so that it could prepare a review in time for its Friday opening.

This resulted in the sort of thing Disney should have expected. Critics groups and several large newspapers showed their support for the LA Times by refusing to attend Disney movie screenings. The critics groups also announced they would not consider any Disney films for awards until the ban was lifted. But what likely hurt Disney the most was the show of support from powerful Hollywood figures, one of which -- Ava DuVernay -- has a movie slated to be released by Disney next March.

Thanks to the swift, strong backlash, Disney has now rescinded its ban. But you won't be hearing Disney admit to being wrong. Instead, it's still trying to portray the LA Times as the sole transgressor in this debacle.

“We’ve had productive discussions with the newly installed leadership at The Los Angeles Times regarding our specific concerns, and as a result, we’ve agreed to restore access to advance screenings for their film critics,” Disney said in a statement.

Yep. Nothing to do with the backlash prompted by its bullshit move. Instead, it's all about a recent regime change and some "productive discussions." And the entertainment giant has nothing to say about its stupidly punitive actions resulting in more attention being drawn to the LA Times articles it disagrees with. There's not much that's more counterproductive than attempting to punish news outlets for delivering news. Even if the news outlet is in the wrong, there's nothing to be gained from refusing to be the adult in the room.

from the mouse-in-the-house dept

Readers of this site will hear the name Disney and immediately begin rolling their eyes. By virtue of its insanely aggressive and expansionist views on intellectual property matters, Disney manages to find itself on the wrong side of nearly every issue. Disney is in the business of making money and it often looks to do so in the most draconian of manners, but the company also bills itself as being dedicated to children's entertainment, growth, and happiness.

Which is why it's somewhat odd to see the giant media company going to IP war against a company that sends unlicensed, poorly-disguised homage characters to children's birthday parties.

Characters for Hire in New York has been hit with a lawsuit after being accused by Disney of infringing upon "highly valuable intellectual property rights" (via the Hollywood Reporter). This includes Star Wars and Frozen characters, as well as superheroes such as Iron Man.

Except that those characters are altered ever so slightly and renamed in an obvious attempt to get around the exact intellectual property laws -- copyright and trademark -- over which Disney is suing. Darth Vader, for instance, is listed as Dark Lord, while Chewbacca has been rebranded as Big Hairy Guy. No, that's not a joke. On the company's homepage, it displays the following disclaimer:

DISCLAIMER: ALL COSTUMED CHARACTERS ARE GENERIC/INSPIRED AND ARE NOT AFFILIATED, LICENSED OR ASSOCIATED WITH ANY CORPORATION OR TRADEMARK. It is not our intention to violate any copyright laws. The characters that we offer are NOT name brand copyrighted characters, and Characters for Hire, LLC. costumed characters are named of our own creation. Any resemblance to nationally known copyrighted characters is strictly coincidental. Should you have the need for a licensed, copyrighted mascot or character at your event, we encourage you to contact the company/copyright holders for your specific targeted character. If you have any questions regarding this issue, we encourage you to contact us. We DO NOT offer nor do we present any licensed and/or copyrighted characters.

For that reason, Characters For Hire is claiming that both the copyright and trademark claims from Disney aren't valid. The characters are altered and renamed in an effort to gain protection from the idea/expression dichotomy, with those same changes and the disclaimer making it clear to the public that the company has no affiliation with the IP owners of the original characters from which these generics are inspired.

That said... yeah, but no. The point made in the disclaimer that the likenesses are strictly coincidental is laughable at best. It's very likely that the copyright portion of Disney's claims will hold up in court. The trademark claims have less a chance of success, as it's abundantly clear that these are not licensed characters or associated in any way with companies like Disney. But, still, the so-called generic characters of Characters For Hire appear to be more than merely "inspired" by the originals and are instead near identical characters with alterations made only to get around copyright law.

But the larger point is: hey, Disney, why? Given that the copyright claims are the most substantive, there was nothing requiring Disney to take this action. Certainly it is laughable for Disney to claim any serious harm from a copyright perspective due to Characters For Hire's actions. All this is really doing is keeping some fun, if unoriginal, characters from entertaining kids and people at birthdays and related events. Is giving up the stated aim to make children happy really worth smacking around a relatively small company that works these sorts of parties?

from the rock-and-a-hard-place dept

So for years we've examined how executives at ESPN completely whiffed at seeing the cord cutting revolution coming, and personified the industry's denial that a massive market (r)evolution was taking place. As viewers were beginning to drift away from traditional cable and erode revenues, ESPN executives were busy doubling down on bloated sports contracts and expensive Sportscenter set redesigns. Only once ESPN lost 10 million viewers in just a few years did executives finally acknowledge that cord cutting was a problem, though they subsequently have tried to downplay the threat at every opportunity.

The question now is how to fix that problem. ESPN's first step was to try and save costs by firing oodles of on-air talent, but not the executives that failed to navigate this sea change. That has since been followed by ESPN-owner Disney recently proclaiming it would be offering two direct to consumer streaming platforms -- one stocked with Disney and Pixar fare, and the other being a direct to consumer ESPN product. During a recent earnings call, Disney CEO Bob Iger verbalized the company's slow epiphany in the face of cord cutting:

"We’ve got this unbelievably passionate base of Disney consumers worldwide that we’ve never had the opportunity to connect with directly other than through the parks,” Iger said. “It’s high time we got into the business to accomplish that.”

Iger acknowledged that the decision to act was spurred by the disruption in the traditional TV eco-system that has been rocking ESPN for the past few years. But Disney’s blue-chip brands give them a leg up in taking a radical new approach to reaching consumers.

“It’s not just a defensive movie, it’s an offensive move,” Iger said.

Granted it's not really playing offense when you only react after worries about cord cutting and ratings slides causes a $22 billion valuation hit in just a few days, something Disney experienced last year. Still, it's good to see Disney pull its head out of the sand and embrace the idea of giving consumers what they want, even if the move is painfully belated and under-cooked. The problem for ESPN specifically, as many have been quick to point out, is that the company is still stuck between a rock and a hard place in terms of navigating the transition to streaming -- even if it does everything right (which it won't).

There's plenty of reasons for that, the biggest being that streaming simply can't be as profitable as the long-standing practice of forcing cable TV customers on to bloated bundles filled with channels (like ESPN) that they may not want. ESPN currently makes $7.21 for each cable TV subscriber, many of which pay for ESPN begrudgingly. One survey found that 56% of ESPN viewers would ditch the channel if it meant saving that money off of their monthly bill. Fear of losing those customers was one of the reason ESPN sued Verizon when the company tried to take ESPN out of its core TV bundle.

And while ESPN may now be technically doing the right thing in finally offering a direct-to-consumer streaming product, such an offering will only aid to expedite viewer defections, while ESPN's sports licensing costs remain the same:

"A streaming service, while it might attract sports fans who have cut the cord, won’t solve ESPN’s profit problems. Instead it will exacerbate them. Why? Because ESPN will continue to lose the millions upon millions of cable subscribers who pay for it but never watch it. Losing $7.21 from each non-watcher is going to be a revenue killer. There is no possible way the universe of sports fans who want ESPN can make up that revenue, even if they’re charged more for a streaming service."

Traditionally, many cable and broadcast companies have tried to give the impression of adaptation by launching a streaming service, then saddling it with all manner of caveats to prevent existing, traditional cable TV customers from downgrading to the cheaper, more flexible streaming option. This really never works, but it looks like the path Iger and Disney are going to follow when it comes to ESPN's latest streaming venture:

"To make matters worse, Disney appears to be planning a streaming service that even the most rabid sports fan will be reluctant to pay for. All the good stuff — big-time college football, professional basketball, the Monday night National Football League game — will remain exclusively on ESPN’s cable channels. The streaming service will get, well, other things. It’s pretty clear that Iger is still trying to protect Disney’s legacy cable business, and that his move to the internet is not exactly a wholehearted embrace."

In other words, ESPN's epiphany and transition isn't quite as profound as many are suggesting, and ESPN still somehow believes it can control the rate of evolution; a fool's errand. Many industry insiders also have told me over the years that ESPN's contracts with many cable providers state that should ESPN offer its own streaming services, cable providers will no longer be bound by restrictions forcing them to include ESPN in their core lineups, which will only accelerate the number of skinny bundle options without ESPN.

It's a damned if you do and damned if you don't scenario for ESPN, and even if ESPN does all the right things here and offers a truly compelling streaming platform customers really enjoy -- there's simply no getting around the fact that this transition is still going to really hurt.

from the drowning-in-monthly-fees dept

On one hand, the increasing number of independent streaming services is certainly a good thing. This increase in competition is finally starting to apply pressure on incumbent cable TV providers to offer greater programming flexibility and to compete on price, even though many cable and broadcast execs falsely believe they can ignore the threat and do the exact opposite. But as everybody and their mother jumps into the streaming game, we're facing a new threat: the rise of fractured exclusivity silos that make consumers hunt and peck to obtain their favorite programs.

Case in point: if you're a fan of a particular program in the modern streaming video age, you first need to check to see if that program or film is available on any of the half-dozen services you may subscribe to, be it Hulu, Netflix, Amazon, CBS All Access, YouTube TV, or any of a myriad of other options. That in and of itself can prove fatiguing on your patience -- and wallet if you're trying to save money over traditional cable. You've then got to see if that content is still actually available, since content licensing results in titles being added and removed in what are often illogical availability windows, adding another layer of confusion.

Now, things are poised to become even more complicated in that regard. Wanting to cut out the middleman, many broadcasters (like CBS, FX or AMC) are busy pursuing their own streaming services, pulling their content from existing available services and forcing users to sign up for yet another monthly subscription. For example, if you want to watch CBS's upcoming new Star Trek: Discovery TV show, your only option will be to sign up for CBS's $7 per month All Access service. Don't want or can't afford another service? Your option is to either go without -- or to pirate the program. Guess which option many choose?

A more recent case in point: Disney announced this week that the company would be pulling its content from Netflix in order to launch its own streaming video service:

CEO Bob Iger told CNBC's Julia Boorstin Disney had a "good relationship" with Netflix, but decided to exercise an option to move its content off the platform. Movies to be removed include Disney as well as Pixar's titles, according to Iger. Netflix said Disney movies will be available through the end of 2018 on its platform. Marvel TV shows will remain. The new platform will be the home for all Disney movies going forward, starting with the 2019 theatrical slate which includes "Toy Story 4," "Frozen 2," and the upcoming live-action "The Lion King." It will also be making a "significant investment" in exclusive movies and television series for the new platform.

On one hand, if you really like Disney content, this may not be a horrible thing for you. On the other hand, if you're only interested in a few Disney titles but already feel you pay for too many streaming services, you could find yourself annoyed. Users are, it goes without saying, cutting the TV cord because they're tired of the poor value proposition traditional cable TV represents. It's not entirely clear you can call it real pricing evolution if you replace one bloated, giant cable bill with an ocean of smaller charges that ultimately cost you the same if not more than your old cable TV subscription.

And while it's not entirely clear how many monthly fees and subscriptions users are willing to tolerate, it is abundantly clear that broadcasters and cable companies intend to push their luck and figure out the answer. Not many seem to realize that should they push too hard and cordon off content into an ocean of annoying exclusivity silos, the end result will drive users back to the simplicity of piracy. And that's a particular shame given all the work it took to wean consumers off of file trading services like BitTorrent and on to "legitimate" monthly streaming subscriptions in the first place.

There's a fine line here as we shift from traditional cable to over the top streaming, and it's precisely the kind of line the traditional cable and broadcast industry loves to trip face-first over.

from the adapt-or-perish dept

For a while now we've noted that it's actually the youngest among us that are leading the cord cutting revolution. Viacom has watched channels like Nickelodeon experience a ratings free fall for several years now as streaming alternatives have emerged as a useful alternative to strictly-scheduled, commercial-bloated Saturday morning cartoons. Toddlers don't really care if they're watching the latest and greatest "True Detective" episode or not, and parents, like everybody else, are tired of paying for bloated cable bundles filled with channels they never watch.

"For the first six months of this year, the commercial-free Disney Channel's ratings among in its core 2-11 and 6-14 demographics fell 23% in prime time and 13% and 18%, respectively, during the full day, compared with the same period a year ago. Ratings are also down at the smaller Disney Jr. and Disney XD networks, which fall under Mr. Marsh's Disney Channel umbrella.

Cable revenue at Disney is relatively flat, and operating income is down 6% in the first half of the current fiscal year. That has contributed to a freak out or two among Wall Street analysts, which have in recent months finally, truly woken up to a trend they spent years both ridiculing and denying. That's in large part thanks to the fact that 2016's 1.7% decline in traditional cable TV viewers was the biggest cord cutting acceleration on record. The second quarter is expected to be notably worse, with most analysts predicting a 1 million subscriber decline (or greater).

"Disney Chief Executive Robert Iger has said that strengthening online accessibility for television programs is a priority and that the company is preparing to offer its channels, in part or whole, directly to consumers online rather than just through costly cable packages. Profits for Disney Channel and Freeform are driven in part by long-term contracts with cable companies, but the erosion in ratings is likely to ultimately hit the bottom line unless the networks can generate substantial new digital revenue."

Of course, like the Millennials ahead of them, most of these kids will grow up (correctly) believing its bizarre and punitive to force people to buy oodles of often-horrible cable TV channels at outrageous prices. And contrary to some cable and broadcast executives who still think this is all just a temporary blip on a radar screen, this rise in competition and the resulting massive shift toward cheaper, more flexible viewing options isn't going anywhere.

from the must-be-because-of-the-mickey-mouse-copyright dept

Remember, to hear the MPAA tell it, piracy is really killing the movie industry. It's been whining about piracy for basically my entire lifetime, and constantly predicting its own demise if "something" is not done. And, despite the fact that Congress has repeatedly obliged Hollywood in ratcheting up copyright anti-piracy laws and despite the fact that the MPAA has been clearly wrong repeatedly (such that the new technologies it feared actually helped expand Hollywood's business), the studios continue to push for awful changes to copyright law, citing the horrors of piracy.

Today, The Walt Disney Studios will become the first studio ever to reach the $7 billion threshold at the global box office, setting a new industry record. With a powerful $290 million global debut for Rogue One: A Star Wars Story, Disney's year-to-date grosses are $6,988.3 million from Jan. 1 through Dec. 18, 2016, including $2,700.4 million domestically, also an industry record, and $4,287.9 million internationally, a Disney record.

These phenomenal box office results are driven by films from Disney, Walt Disney Animation Studios, Pixar Animation Studios, Marvel Studios, and Lucasfilm, representing the first time that all five of these world-class brands have released films in the same calendar year.

"This historic achievement is possible because all of our film studios are bringing their absolute best to the table, telling great stories of all kinds that resonate with audiences across borders, gender, and generations," said Alan Horn, Chairman, The Walt Disney Studios. "These films work because each one has not only something for everyone, but everything for someone. It's our honor to be able to create these experiences for audiences, and we're thankful to them for continuing to come out to the theater with us.

Indeed. Making great movies and making them accessible for people to watch is a great business strategy. Freaking out about a small group of people seeing infringing copies of the movie? Perhaps not so much. Either way, it's amusing to see how the studio's own PR drastically undermines the doom and gloom stories from the MPAA and Hollywood's other lobbyists about how dire the situation is. Maybe copyright infringement isn't such a big problem when you actually focus on making a quality product that people want.

from the disconnect-over-the-disconnecters dept

It's been more than a bit perplexing to watch ESPN, sports television giant though it may be, shrug its shoulders at the cord-cutting trend that has refused to bend to the network's pleasure. With streaming being a thing, and that super-charging the cord-cutting revolution, we've made the point for some time that the sports broadcast industry was eventually going to feel the grip of fewer subscribers, as has been the case with much of the rest of the television medium. Yet ESPN barely reacted at all to cord-cutting, other than to insist that established ratings systems are crap and that its loss of millions of subscribers over the past few years was of no concern, mostly because those subscribers were poor. ESPN President John Skipper said just last year:

People trading down to lighter cable packages. That impact hasn't leaked into ad revenue, nor has it leaked into ratings. The people who’ve traded down have tended to not be sports fans, and have tended to be older and less affluent. We still see people coming into pay TV. It remains the widest spread household service in the country after heat and electricity.

Yet those comments came almost immediately after a huge round of layoffs at the network in 2015, trimming the behind-the-camera staff to what is essentially a skeleton crew. Still, stock prices stalled for Disney, with much of the blame being placed upon ESPN's subscriber loss. Some market experts have made some rather bold predictions that the subscriber woe for ESPN is over-hyped, even going so far as to predict massive market gains for Disney this year. That optimism seems to be largely built on the recent investment ESPN has made into digital distribution and streaming options. But if anyone out there is buying such optimism, the executives at ESPN do not seem to be among them.

Richard Deitsch at Sports Illustrated has a detailed write-up of ESPN's plans for its on-air talent in 2017 and it certainly looks like that talent is going to have reason for concern about cord-cutting that the executives lack.

SI has learned that ESPN will have significant cost-cutting over the next four months on its talent side (people in front of the camera or audio/digital screen). Multiple sources said ESPN has been tasked with paring tens of millions of staff salary from its payroll, including staffers many viewers and readers will recognize. Those with contracts coming up would be particularly vulnerable, sources said. The company is also expected to buyout some existing contracts, which is something rare for ESPN historically beyond a few NFL talents. The cuts are expected to be completed by June. Sources within ESPN say that there is no set list of names yet and stressed that behind-the-scenes people will likely (key word) not be impacted by these cuts.

Last month Reuters reported Disney had a lower-than-expected quarterly revenue, hurt by the drop in advertising revenue at ESPN. In addition, ESPN continues to shed subscribers at an enhanced rate, down to 88.4 million households in Dec. 2016. That number was 100.002 million in Feb. 2011.

It had to happen eventually. A network can't drop subscribers at rates in the double-digits without eventually taking a hit on the ad-revenue. Couple that with the sports licensing landscape in which partnering with teams and leagues has never been more expensive and it becomes difficult to see a way out this wilderness for ESPN. And, if this seems like a terrible trend for a business generally, it's particularly bad for a brand like ESPN, whose on-air talent has always been a key part of its success. The network likes to argue that it makes the talent popular and not the other way around, and it has some recent examples that demonstrate this to some degree, but the truth is that the talent and the network are more symbiotic than that. There's a reason why the retirement of Chris Berman, annoying slogan peddler though he may be, is such a big deal. He's been a titan for the network. Replacing that while cutting pay for the on-air talent is a unenviable task, to say the least.

The most immediate causes of the layoffs are clear. Over the last several years rights fees have skyrocketed, with ESPN now paying over $3.3 billion annually just to broadcast the NFL and NBA. Simultaneously, ESPN’s subscriber count and viewership—the fabled dual revenue stream that has made it the most envied television company in the country—have tumbled. While the loss of 12 million subscribers over five years is mostly due to generalized cord cutting, and not subscribers specifically dropping ESPN, it doesn’t really matter: It still amounts to losing almost a billion dollars annually. The status quo is unsustainable, and with rights fees already locked in for several years, salaries are one of the biggest areas available to cut expenses.

This how media giants die. Not quickly, or with mercy, but rather by being slowly bled to death by the reality of new times and un-adopted innovation. Sources from inside the company suggest ESPN execs weren't even discussing the cord-cutting trend until 2015. It seems that may prove to have been too late to right the ship in Bristol.